POOLING AND SERVICING AGREEMENT

EXHIBIT 4.2

 

POOLING AND SERVICING AGREEMENT

among

CIT EQUIPMENT COLLATERAL [____-__],
as Issuer,

CIT FUNDING COMPANY, LLC,
as Depositor,

CIT FINANCIAL USA, INC.,
in its individual capacity, and

THE CIT GROUP/EQUIPMENT FINANCING, INC.
as Servicer

Dated as of [__________], 200[_]

 

TABLE OF CONTENTS

 

				Page
ARTICLE I DEFINITIONS				1
Section 1.01		Definitions		1
Section 1.02		Usage of Terms		38
Section 1.03		Section References		38
Section 1.04		Accounting Terms		38
ARTICLE II FUNDINGS OF TRUST; TRANSFERS OF CONTRACTS				38
Section 2.01		Creation and Funding of Trust; Transfer of Transferred Assets to Trust		38
Section 2.02		Conditions to Transfers		40
Section 2.03		Acceptance by Trust		42
Section 2.04		Conveyance of Substitute Contracts		42
Section 2.05		Release of Excluded Amounts		44
Section 2.06		Waiver		44
ARTICLE III REPRESENTATIONS AND WARRANTIES				44
Section 3.01		Representations and Warranties Regarding the Depositor		45
Section 3.02		Representations and Warranties of the Servicer		47
ARTICLE IV PERFECTION OF TRANSFERS AND PROTECTION OF SECURITY INTERESTS				49
Section 4.01		Custody of Contracts		49
Section 4.02		Filings		50
Section 4.03		Name Change or Relocation		50
Section 4.04		Maintenance of Security Interests in Vehicles; Retitling		51
ARTICLE V SERVICING OF CONTRACTS				52
Section 5.01		Initial Servicer’s Appointment and Acceptance; Responsibility for Contract Administration		52
Section 5.02		General Duties		52
Section 5.03		Assignment or Replacement		53
Section 5.04		Disposition Upon Termination of Contract		53
Section 5.05		Subservicers		53
Section 5.06		Further Assurance		53
Section 5.07		Notice to Obligors		53
Section 5.08		Collection Efforts; Modification of Contracts		54
Section 5.09		Prepayments of Certain Contracts		55
Section 5.10		Certain Extensions; Acceleration		55
Section 5.11		Taxes and Other Amounts		55
Section 5.12		Suits by Servicer		56
Section 5.13		Remittances		56
Section 5.14		Servicer Advances		56

 

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Section 5.15		Realization Upon Liquidated Contract		56
Section 5.16		Maintenance of Insurance Policies		56
Section 5.17		Certain Other Duties With Respect to Trust		57
Section 5.18		Servicing Compensation		57
Section 5.19		Payment of Certain Expenses by Servicer		57
Section 5.20		Records		57
Section 5.21		Inspection		57
Section 5.22		Trust To Cooperate in Releases		58
Section 5.23		Separate Entity Existence		58
Section 5.24		Assignment of Servicing		58
ARTICLE VI COVENANTS OF THE DEPOSITOR				59
Section 6.01		LLC Existence		59
Section 6.02		Contracts Not to be Evidenced by Promissory Notes		59
Section 6.03		Security Interests		59
Section 6.04		Delivery of Collections		59
Section 6.05		Regulatory Filings		59
Section 6.06		Compliance With Law		59
Section 6.07		Activities		59
Section 6.08		Indebtedness		60
Section 6.09		Guarantees		60
Section 6.10		Investments		60
Section 6.11		Merger; Transfers		60
Section 6.12		Payments		60
Section 6.13		Other Agreements		61
Section 6.14		Separate Entity Existence		61
Section 6.15		Location; Records		62
Section 6.16		Liability of Depositor; Indemnities		62
Section 6.17		Bankruptcy Limitations		63
Section 6.18		Limitation on Liability of Depositor and Others		64
ARTICLE VII ESTABLISHMENT OF ACCOUNTS; PAYMENTS				64
Section 7.01		Trust Accounts; Collections		64
Section 7.02		Reserve Account		65
Section 7.03		Trust Account Procedures		66
Section 7.04		Securityholder Payments		66
Section 7.05		Allocations and Payments		67
Section 7.06		Repurchases of, or Substitution for, Contracts for Breach of Representations and Warranties		72
Section 7.07		Reassignment of Repurchased or Substituted Contracts		73
Section 7.08		The Servicer’s Purchase Option		73
ARTICLE VIII SERVICER DEFAULTS; SERVICING TRANSFER				73
Section 8.01		Servicer Default		73
Section 8.02		Servicing Transfer		74
Section 8.03		Appointment of Successor Servicer; Reconveyance; Successor Servicer to Act		75

 

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Section 8.04		Notifications to Noteholders and the Equity Certificateholders		76
Section 8.05		Effect of Transfer		77
Section 8.06		Database File		77
Section 8.07		Successor Servicer Indemnification		77
Section 8.08		Responsibilities of the Successor Servicer		77
Section 8.09		Servicer Not to Resign		78
ARTICLE IX SERVICER REPORTING				78
Section 9.01		Monthly Reports		78
Section 9.02		Officer’s Certificate		79
Section 9.03		Other Data		79
Section 9.04		Annual Reporting; Evidence as to Compliance		79
Section 9.05		Annual Statement of Compliance from Servicer		79
ARTICLE X TERMINATION				80
Section 10.01		Sale of Trust Assets		80
ARTICLE XI MISCELLANEOUS				80
Section 11.01		Amendments		80
Section 11.02		Reserved		82
Section 11.03		Governing Law		82
Section 11.04		Notices		82
Section 11.05		Severability of Provisions		84
Section 11.06		Third Party Beneficiaries		84
Section 11.07		Counterparts		85
Section 11.08		Headings		85
Section 11.09		No Bankruptcy Petition; Disclaimer and Subordination		85
Section 11.10		Jurisdiction		86
Section 11.11		[Reserved]		86
Section 11.12		Servicer Indemnity		86
Section 11.13		Limitation of Liability of Owner Trustee		86
Section 11.14		WAIVER OF JURY TRIAL		87
EXHIBITS
Exhibit A		Form of Transfer Agreement		A-1
Exhibit B		Form of VFC Assignment		B-1
Exhibit C		Initial Schedule of Contracts		C-1
Exhibit D		Form of Servicer’s Monthly Report		D-1
Exhibit E		Form of Substitution Transfer Agreement		E-1
Exhibit F		[Reserved]		F-1
Exhibit G		Schedule of Representations and Warranties		G-1
Exhibit H		[Reserved]		H-1
Exhibit I		[Reserved]		I-1
Exhibit J		Minimum Value Filing Exceptions		J-1

 

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This POOLING AND SERVICING AGREEMENT, dated as of [__________], 200[_], is among CIT Equipment Collateral [____-__], a Delaware statutory trust (together with its successors and assigns, the “Issuer” or the “Trust”), CIT Funding Company, LLC, a Delaware limited liability company (together with its successors and assigns, the “Depositor”), CIT Financial USA, Inc. (together with its successors and assigns, “CFUSA”) and The CIT Group/Equipment Financing, Inc., a Delaware corporation (together with its successors and assigns, the “Servicer”).

WHEREAS the Depositor desires to fund the Trust by selling, conveying and assigning from time to time, pursuant hereto or pursuant to Substitution Transfer Agreements hereunder, designated Contracts or pools of Contracts together with certain related security therefor and other related rights and property as further described herein, which Contracts were originated by the Financing Originator, or acquired by purchase and assignment by the Financing Originator from the prior owner thereof, and subsequently conveyed (i) by the Financing Originator to CFUSA; (ii) by CFUSA to the Depositor, with respect to Contracts and related assets acquired by CFUSA from the Financing Originator as described in clause (i) above; (iii) in the case of the VFC Contracts, by the Depositor to the VFC Trust (as defined herein); and (iv) in the case of the VFC Contracts originated by the Financing Originator and warehoused in the VFC Trust, by the VFC Trust back to the Depositor; and

WHEREAS the Trust is willing to purchase and accept assignment of such Contracts and related assets; and

WHEREAS the Servicer is willing to service such Contracts and related assets for the benefit and account of the Trust and the Holders pursuant to the terms hereof;

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01      Definitions . Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:

“Accounting Date” means, with respect to a Payment Date, the last day of the preceding calendar month.

“Accountant’s Report” has the meaning specified in Section 9.04.

“Accrual Period” means, with respect to any Payment Date, with respect to the Class A-1 Notes, the period from and including the immediately preceding Payment Date to but excluding such Payment Date (or, in the case of the initial Accrual Period, from and including the Closing Date to but excluding the first Payment Date following the Closing Date), and with respect to each other Class of Notes, the period from and including the [__]th day of the immediately preceding calendar month to but excluding the [__]th day of the related calendar

 

 

month, provided, that in each case, the initial Accrual Period following the Closing Date shall be the period from and including the Closing Date to but excluding [__________], 200[_].

“Addition Notice” means, with respect to any transfer of Subsequent Contracts to the Trust pursuant to Section 2.04 (and the Depositor’s corresponding prior purchase of such Contracts from CFUSA), a notice, which shall be given at least five days prior to the related Subsequent Transfer Date, identifying the Subsequent Contracts to be transferred, the Contract Principal Balance of such Subsequent Contracts and the related Substitution Event (with respect to an identified Contract or Contracts then in the Contract Pool) to which such Subsequent Contract relates, with such notice to be signed both by the Depositor and CFUSA.

“Administration Agreement” means the Administration Agreement dated as of [__________], 200[_] by and among the Trust, CITEF, the Depositor and the Indenture Trustee.

“Administrator” shall be the party named as such under the Administration Agreement.

“Affiliate” of any specified Person means any other Person controlling or controlled by, or under common control with, such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” or “controlled” have meanings correlative to the foregoing.

“Aggregate Principal Amount” means, with respect to any group of Notes, at any date of determination, the sum of the Principal Amounts of such Notes on such date of determination.

“Agreement” means this Pooling and Servicing Agreement, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Allocation Criteria” means, with respect to the allocation of Insurance Proceeds or Liquidation Proceeds between the Trust (for inclusion as Pledged Revenues) and the Depositor, as contemplated in the definition of Available Pledged Revenues, that Insurance Proceeds or Liquidation Proceeds with respect to the Contracts consisting of Leases are allocable pro rata between inclusion as Available Pledged Revenues in respect of the Contract Pool, on the one hand, and directly to the Depositor, on the other, based upon (i) for allocation to Available Pledged Revenues, the Required Payoff Amount for such Lease (determined as of the last day of the Collection Period during which such Lease became a Liquidated Contract), and (ii) for allocation to the Depositor, the Book Value of the related Equipment; provided, that in the event the Insurance Proceeds or Liquidation Proceeds in respect of a particular Lease exceed the sum of such Required Payoff Amount for such Lease plus the Book Value of the related Equipment, any such excess shall be allocated solely to the Depositor.

“Amount Available” means, with respect to any Payment Date, (i) the sum of the Available Pledged Revenues for such Payment Date and (ii) that portion of the balance in the Reserve Account available for withdrawal by the Indenture Trustee in accordance with Section 7.05(d).

 

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“Applicable Security” means, with respect to a Vendor Loan, any (i) Secondary Contract securing such Vendor Loan and (ii) Equipment securing such Vendor Loan or a related Secondary Contract.

“Assignment Agreement” means the Assignment Agreement, dated [__________], 200[_] by and between CFUSA, as transferor, and CITEF.

“Available Pledged Revenues” means, as to any Payment Date, the sum of (i) the Related Collection Period Pledged Revenues for such Payment Date, (ii) all Purchase Amounts (other than any portion thereof attributable to the Book Value of the Leased Equipment) and Servicer Advances on deposit in the Collection Account as of the immediately preceding Deposit Date, (iii) the amount paid by CFUSA or the Depositor to purchase the Contracts pursuant to Section 7.08 of this Agreement on deposit in the Collection Account as of the immediately preceding Deposit Date, and (iv) to the extent necessary to pay the Note Interest Distributable Amount for such Payment Date, the Current Collection Period Pledged Revenues for such Payment Date.

“Available Reserve Amount” means, with respect to a Payment Date, the amount of funds equal to the lesser of (i) the amount on deposit in the Reserve Account (determined (a) exclusive of any Investment Earnings thereon and (b) before giving effect to any deposit to be made or withdrawals from the Reserve Account with respect to such Payment Date), and (ii) the Required Reserve Amount.

“Book Value” means, with respect to any Equipment subject to a Lease, the value of such Equipment as shown on the accounting books and records of the Financing Originator (or the Depositor, in the case of Equipment relating to Contracts being transferred pursuant to the VFC Assignment), as of the Cut-Off Date for the related Lease (it being understood that Book Value constitutes a measure of the lessor’s residual interest in the Equipment as shown on its books and records as of such date, net of the financial asset shown on such books and records represented by the discounted Scheduled Payments owing on the Lease).

“Business Day” means any day which is neither a Saturday or a Sunday, nor another day on which banking institutions in the cities of Livingston, New Jersey, Tempe, Arizona or New York, New York are authorized or obligated by law, executive order, or governmental decree to be closed.

“Casualty Loss” means, with respect to any item of Equipment, the loss, theft, damage beyond repair or governmental condemnation or seizure of such item of Equipment.

“Certificate of Formation” means the limited liability company Certificate of Formation of the Depositor.

“Certificate of Trust” has the meaning given such term in the Trust Agreement.

“Certificate Register” has the meaning specified in the Trust Agreement.

“CFUSA” means CIT Financial USA, Inc., a Delaware corporation.

 

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“CIT” means CIT Group Inc., a Delaware corporation.

“CITEF” means The CIT Group/Equipment Financing, Inc., a Delaware corporation.

“CITEF Contract” means a Contract originated or acquired by CITEF, but which is not a VFC Contract.

“Class” means any of the group of Notes, or the Equity Certificate identified herein as the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class B Notes, the Class C Notes and the Class D Notes or the Equity Certificate, as applicable.

“Class A Notes” means the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes.

“Class A Percentage” means, with respect to any Payment Date, [__]% minus the Class B Percentage for such Payment Date.

“Class A Principal Payment Amount” means: (1) with respect to any Payment Date on or prior to the Payment Date on which the Principal Amount of the Class A-1 Notes has been reduced to zero, the greater of (i) the excess of (x) the Principal Amount of the Class A-1 Notes over (y) the Class A-1 Scheduled Principal Balance and (ii) the product of the Class A Percentage and the Total Principal Payment Amount and (2) with respect to any Payment Date thereafter, the product of the Class A Percentage and the Total Principal Payment Amount; provided, however, that in no event shall the Class A Principal Payment Amount exceed the Principal Amount of the Class A Notes. Notwithstanding the foregoing, to the extent that the Principal Amount of the Class A-1 Notes is greater than zero on the Class A-1 Maturity Date, the Class A Principal Payment Amount on the Payment Date that is the Class A-1 Maturity Date shall be the amount required to reduce the Principal Amount of the Class A-1 Notes to zero.

“Class A-1 Interest Carryover Shortfall” means, with respect to any Payment Date, the excess, if any, of the Class A-1 Interest Distributable Amount for the preceding Payment Date over the amount that was actually distributed in respect of interest on the Class A-1 Notes on such preceding Payment Date, plus, to the extent permitted by law, an amount equal to the product of (i) the Class A-1 Interest Rate, (ii) such excess, and (iii) a fraction equal to the number of days in the related Accrual Period divided by 360.

“Class A-1 Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class A-1 Monthly Interest Distributable Amount and the Class A-1 Interest Carryover Shortfall for such Payment Date.

“Class A-1 Interest Rate” means [__]% per annum.

“Class A-1 Maturity Date” means [__________] (or, if such day is not a Business Day, the next preceding Business Day).

“Class A-1 Monthly Interest Distributable Amount” means, (a) with respect to the first Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class

 

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A-1 Interest Rate, (ii) the Initial Class A-1 Principal Amount, and (iii) a fraction equal to the number of days in such Accrual Period divided by 360, and (b) with respect to each subsequent Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class A-1 Interest Rate, (ii) the Principal Amount of the Class A-1 Notes on the immediately preceding Payment Date, after giving effect to all payments of principal to Class A-1 Noteholders on or prior to such immediately preceding Payment Date (or, in the case of the first Payment Date, the Initial Class A-1 Principal Amount), and (iii) a fraction equal to the number of days in such Accrual Period divided by 360.

“Class A-1 Notes” means the $[__________] Aggregate Principal Amount of [__]% Receivable-Backed Notes, Class A-1, issued pursuant to the Indenture.

“Class A-1 Scheduled Principal Balance” means, with respect to each Payment Date, the balance for such Payment Date as set forth in the following table.

 

Payment Date		Class A-1 Scheduled Principal Balance
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]
[__________]		$[__________]

 

“Class A-2 Interest Carryover Shortfall” means, with respect to any Payment Date, the excess, if any, of the Class A-2 Interest Distributable Amount for the preceding Payment Date over the amount that was actually distributed in respect of interest on the Class A-2 Notes on such preceding Payment Date, plus, to the extent permitted by law, an amount equal to the product of (i) the Class A-2 Interest Rate, (ii) such excess, and (iii) a fraction equal to one-twelfth.

 

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“Class A-2 Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class A-2 Monthly Interest Distributable Amount and the Class A-2 Interest Carryover Shortfall for such Payment Date.

“Class A-2 Interest Rate” means [__]% per annum.

“Class A-2 Maturity Date” means [__________] (or, if such day is not a Business Day, the next succeeding Business Day thereafter).

“Class A-2 Monthly Interest Distributable Amount” means (a) with respect to the first Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class A-2 Interest Rate, (ii) the Initial Class A-2 Principal Amount, and (iii) a fraction equal to the number of days in such Accrual Period divided by 360, and (b) with respect to each subsequent Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class A-2 Interest Rate, (ii) the Principal Amount of the Class A-2 Notes on the immediately preceding Payment Date, after giving effect to all payments of principal to Class A-2 Noteholders on or prior to such immediately preceding Payment Date, and (iii) a fraction equal to one-twelfth.

“Class A-2 Notes” means the $[__________] Aggregate Principal Amount of [__]% Receivable-Backed Notes, Class A-2, issued pursuant to the Indenture.

“Class A-3 Interest Carryover Shortfall” means, with respect to any Payment Date, the excess, if any, of the Class A-3 Interest Distributable Amount for the preceding Payment Date over the amount that was actually distributed in respect of interest on the Class A-3 Notes on such preceding Payment Date, plus, to the extent permitted by law, an amount equal to the product of (i) the Class A-3 Interest Rate, (ii) such excess, and (iii) a fraction equal to one twelfth.

“Class A-3 Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class A-3 Monthly Interest Distributable Amount and the Class A-3 Interest Carryover Shortfall for such Payment Date.

“Class A-3 Interest Rate” means [__]% per annum.

“Class A-3 Maturity Date” means [__________] (or, if such day is not a Business Day, the next succeeding Business Day thereafter).

“Class A-3 Monthly Interest Distributable Amount” means (a) with respect to the first Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class A-3 Interest Rate, (ii) the Initial Class A-3 Principal Amount, and (iii) a fraction equal to the number of days in such Accrual Period divided by 360, and (b) with respect to each subsequent Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class A-3 Interest Rate, (ii) the Principal Amount of the Class A-3 Notes on the immediately preceding Payment Date, after giving effect to all payments of principal to Class A-3 Noteholders on or prior to such immediately preceding Payment Date, and (iii) a fraction equal to one twelfth.

 

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“Class A-3 Notes” means the $[__________] Aggregate Principal Amount of [__]% Receivable-Backed Notes, Class A-3, issued pursuant to the Indenture.

“Class B Floor” means, with respect to any Payment Date, an amount equal to (i) [__]% of the Initial Contract Pool Principal Balance, plus (ii) the Unfunded Loss Amount, if any, for such Payment Date, minus (iii) the sum of the Principal Amount of the Class C Notes plus the Principal Amount of the Class D Notes, prior to giving effect to any payments of principal on the Class C Notes or the Class D Notes on that Payment Date, plus the amount on deposit in the Reserve Account (after giving effect to withdrawals and releases to be made on such Payment Date); provided, however, that in no event will the Class B Floor be greater than the Principal Amount of the Class B Notes immediately prior to such Payment Date nor less than zero.

“Class B Interest Carryover Shortfall” means, with respect to any Payment Date, the excess, if any, of the Class B Interest Distributable Amount for the preceding Payment Date over the amount that was actually distributed in respect of interest on the Class B Notes on such preceding Payment Date, plus, to the extent permitted by law, an amount equal to the product of (i) the Class B Interest Rate, (ii) such excess, and (iii) a fraction equal to one-twelfth.

“Class B Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class B Monthly Interest Distributable Amount and the Class B Interest Carryover Shortfall for such Payment Date.

“Class B Interest Rate” means [__]% per annum.

“Class B Maturity Date” means [__________] (or, if such day is not a Business Day, the next succeeding Business Day thereafter).

“Class B Monthly Interest Distributable Amount” means (a) with respect to the first Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class B Interest Rate, (ii) the Initial Class B Principal Amount, and (iii) a fraction equal to the number of days in such Accrual Period divided by 360, and (b) with respect to each subsequent Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class B Interest Rate, (ii) the Principal Amount of the Class B Notes on the immediately preceding Payment Date, after giving effect to all payments of principal to Class B Noteholders on or prior to such immediately preceding Payment Date, and (iii) a fraction equal to one-twelfth.

“Class B Notes” means the $[__________] Aggregate Principal Amount of [__]% Receivable-Backed Notes, Class B, issued pursuant to the Indenture.

“Class B Percentage” means, with respect to any Payment Date, the percentage determined by dividing (i) the Principal Amount of the Class B Notes as of the beginning of the related Collection Period by (ii) the sum of the Principal Amount of the Class A Notes plus the Principal Amount of the Class B Notes as of the beginning of the related Collection Period.

“Class B Principal Payment Amount” means the lesser of (i) the excess, if any, of (a) the Total Principal Payment Amount over (b) the Class A Principal Payment Amount and (ii) the lesser of (a) the excess, if any, of (1) the Principal Amount of the Class B Notes over (2) the Class B Floor or (b) the Class B Target Principal Payment Amount; provided, however, that

 

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in no event will the Class B Principal Payment Amount exceed the Principal Amount of the Class B Notes.

“Class B Target Principal Payment Amount” means, with respect to any Payment Date, the product of (i) the Class B Percentage and (ii) the Total Principal Payment Amount.

“Class C Interest Carryover Shortfall” means, with respect to any Payment Date, the excess, if any, of the Class C Interest Distributable Amount for the preceding Payment Date over the amount that was actually distributed in respect of interest on the Class C Notes on such preceding Payment Date, plus, to the extent permitted by law, an amount equal to the product of (i) the Class C Interest Rate, (ii) such excess, and (iii) a fraction equal to one-twelfth.

“Class C Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class C Monthly Interest Distributable Amount and the Class C Interest Carryover Shortfall for such Payment Date.

“Class C Interest Rate” means [__]% per annum.

“Class C Maturity Date” means [__________] (or, if such day is not a Business Day, the next succeeding Business Day thereafter).

“Class C Monthly Interest Distributable Amount” means (a) with respect to the first Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class C Interest Rate, (ii) the Initial Class C Principal Amount, and (iii) a fraction equal to the number of days in such Accrual Period divided by 360, and (b) with respect to each subsequent Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class C Interest Rate, (ii) the Principal Amount of the Class C Notes on the immediately preceding Payment Date, after giving effect to all payments of principal to Class C Noteholders on or prior to such immediately preceding Payment Date, and (iii) a fraction equal to one-twelfth.

“Class C Notes” means the $[__________] Aggregate Principal Amount of [__]% Receivable-Backed Notes, Class C, issued pursuant to the Indenture.

“Class D Interest Carryover Shortfall” means, with respect to any Payment Date, the excess, if any, of the Class D Interest Distributable Amount for the preceding Payment Date over the amount that was actually distributed in respect of interest on the Class D Notes on such preceding Payment Date, plus, to the extent permitted by law, an amount equal to the product of (i) the Class D Interest Rate, (ii) such excess, and (iii) a fraction equal to one-twelfth.

“Class D Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class D Monthly Interest Distributable Amount and the Class D Interest Carryover Shortfall for such Payment Date.

“Class D Interest Rate” means [__]% per annum.

“Class D Maturity Date” means [__________] (or, if such day is not a Business Day, the next succeeding Business Day thereafter).

 

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“Class D Monthly Interest Distributable Amount” means (a) with respect to the first Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class D Interest Rate, (ii) the Initial Class D Principal Amount, and (iii) a fraction equal to the number of days in such Accrual Period divided by 360, and (b) with respect to each subsequent Accrual Period and the related Payment Date, an amount equal to the product of (i) the Class D Interest Rate, (ii) the Principal Amount of the Class D Notes on the immediately preceding Payment Date, after giving effect to all payments of principal to Class D Noteholders on or prior to such immediately preceding Payment Date, and (iii) a fraction equal to one-twelfth.

“Class D Notes” means the $[__________] Aggregate Principal Amount of [__]% Receivable-Backed Notes, Class D, issued pursuant to the Indenture.

“Closing Date” means [__________].

“Code” means the Internal Revenue Code of 1986, as amended.

“Collection Account” means the account so designated established pursuant to Section 7.01.

“Collection Account Property” means the Collection Account, all amounts and investments held from time to time in the Collection Account (whether in the form of deposit accounts, physical property, book-entry securities, uncertificated securities or otherwise), and all proceeds of the foregoing.

“Collection Period” means a period beginning on the first day of a calendar month and ending on, but not including, the first day of the next calendar month, provided that the first Collection Period shall be the two calendar months preceding the month in which the first payment date occurs.

“Commission” means the United States Securities and Exchange Commission.

“Computer Disk” means the computer disk generated by the Servicer (or any subservicer under Section 5.05), which provides information relating to Contracts in the Contract Pool and which was used by such party in selecting the related Contracts for conveyance and inclusion in such Contract Pool, and includes the master file and the history file as well as servicing information with respect to such Contracts.

“Contract” means each End-User Contract and each Vendor Loan listed on any Schedule of Contracts but, unless otherwise specified herein, shall not refer to any Secondary Contract.

“Contract Assets” means, with respect to any Contracts (including Substitute Contracts) and related assets conveyed or being conveyed to the Depositor pursuant to a Substitution Assignment Agreement, the VFC Assignment or the Non-VFC Purchase Agreement, and concurrently conveyed or being conveyed by the Depositor to the Trust pursuant to this Pooling Agreement or a Substitution Transfer Agreement, all right, title and interest of CFUSA or the VFC Trust, as the case may be, in, to and under:

 

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(i)   such Contracts, and all monies due or to become due in payment of such Contracts on and after the relevant Cut-Off Date, and including Scheduled Payments due but not yet received prior to the relevant Cut-Off Date and all other Scheduled Payments due or becoming due on or after the relevant Cut-Off Date, any Prepayments, any payments in respect of a casualty or early termination, any Liquidation Proceeds received with respect thereto, but excluding any Scheduled Payments both due and actually received and processed prior to the related Cut-Off Date and any Excluded Amounts;

(ii)   the Financed Items related to such Contracts and, in the case of any Vendor Loan, related Applicable Security, including all proceeds from any sale or other disposition of such Financed Items (but subject to the exclusion and release herein of Excluded Amounts);

(iii)   the related Contract Files;

(iv)   all payments made or to be made in the future with respect to such Contracts or the Obligor thereunder under any Vendor Agreements with the Financing Originator and under any guarantee or similar credit enhancement with respect to such Contracts;

(v)   all Insurance Proceeds with respect to each such Contract; and

(vi)   all income from and proceeds of the foregoing.

“Contract File” means, with respect to each Contract, the fully executed original counterpart (for UCC purposes) of the Contract, the original certificate of title or other title document with respect to the related Equipment (if applicable), and otherwise such documents or electronic entries, if any, that the Servicer (or Financing Originator) keeps on file in accordance with Customary Policies and Procedures evidencing ownership of such Equipment (if applicable), and all other documents originally delivered to the Financing Originator or held by the Servicer (or subservicer under Section 5.05) with respect to any Contract.

“Contract Pool” means, as of any date of determination, the aggregate of the Contracts which have been conveyed to the Trust and which constitute as of such date Trust Assets under the terms and provisions hereof.

“Contract Pool Principal Balance” means with respect to any Payment Date, the sum of the Contract Principal Balances (computed as of the related Accounting Date) for all Contracts.

“Contract Principal Balance” means as of any Accounting Date, with respect to any Contract, the present value of the unpaid Scheduled Payments due on such Contract after such Accounting Date (excluding all Scheduled Payments due on or prior to, but not received as of, such Accounting Date, as well as any Scheduled Payments due after, but received as of, such Accounting Date), after giving effect to any Prepayments received on or prior to such Accounting Date, discounted monthly at the Discount Rate (assuming, for purposes of such calculation, that each Scheduled Payment is due on the last day of the applicable Collection Period); provided that, for purposes of computing the Contract Pool Principal Balance or, except

 

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where stated otherwise, for any other purpose described herein (a) the Contract Principal Balance of any Defaulted Contract as of the end of a given Collection Period will be deemed to be its Contract Principal Balance plus Scheduled Payments due but not yet paid on such Contract as of the first day of the Collection Period during which it became a Defaulted Contract, less the Defaulted Contract Valuation Amount for such Defaulted Contract, and (b) the Contract Principal Balance of any Contract which became a Liquidated Contract during a given Collection Period or which was a Contract which CFUSA was obligated to purchase from the Trust pursuant to Section 7.06 of this Agreement as of the end of a given Collection Period will be deemed to be zero on and after the last day of the Collection Period.

“Controlled Group” means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with the Servicer or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code.

“Corporate Trust Office” means the corporate trust office of the Owner Trustee in the State of Delaware, which office initially shall be located at [_______________], or such other office at such other address in the State of Delaware as the Owner Trustee may designate from time to time by notice to the Equity Certificateholder, the Servicer, the Administrator and the Depositor.

“CPR” means a conditional prepayment rate which assumes that a fraction of the outstanding Contract Pool is prepaid on each Payment Date and also assumes that all Contracts have the same initial principal balance and amortize at the same rate.

“CSA” means each conditional sales agreement, including, as applicable, schedules, subschedules, supplements and amendments to a master conditional sales agreement, pursuant to which specified assets were conditionally sold to an Obligor at specified monthly, quarterly, semi-annual or annual payments.

“Cumulative Loss Ratio” means the ratio of (a) the Cumulative Reported Net Losses recognized with respect to the contracts in the contract pool over (b) the Initial Contract Pool Principal Balance.

“Cumulative Loss Trigger” means:

 

Collection Periods		Cumulative Loss Ratio
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] to [__________]		[__]%
[__________] and thereafter		[__]%

 

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“Cumulative Reported Net Losses” with respect to a collection period equal the aggregate of the Defaulted Contract Valuation Amounts minus the sum of any subsequent cash collections on defaulted contracts, including liquidation proceeds.

“Current Collection Period Pledged Revenues” means, with respect to any Payment Date, the amount of Pledged Revenues in the Collection Account as of the immediately preceding Deposit Date which were received by the Servicer after the end of the related Collection Period, including all Liquidation Proceeds so received but excluding any Purchase Amount.

“Customary Policies and Procedures” means, with respect to any Contract Assets, the customary standards, policies and procedures of the Financing Originator with respect to such Contract Assets in effect at the time of the Cut-Off Date with respect thereto, as the same may be changed from time to time (provided that any such change does not materially impair (i) the collectibility of the related Contract, or (ii) the Servicer’s ability to perform its obligations under this Agreement with respect thereto).

“Cut-Off Date” means either or both (as the context may require) the Initial Cut-Off Date and any Substitution Cut-Off Date, as applicable to the Contract or Contracts in question.

“Date of Processing” means, with respect to any transaction or Pledged Revenue, the date on which such transaction or Pledged Revenue is first recorded (and, in the case of a transaction or Pledged Revenue related to a particular Contract, identified as to such particular Contract as an Amount Available) on the Financing Originator’s or the Servicer’s computer master file of Contracts (without regard to the effective date of such recordation).

“Defaulted Contract” means a Contract in the Contract Pool with respect to which there has occurred one or more of the following: (i) all or some portion of any Scheduled Payment under the Contract (constituting at least $25 of such Scheduled Payment due) is 180 days or more delinquent from its original due date (or, with respect to a Contract for which there exists available payment recourse to a Vendor to satisfy the amount in default, and which recourse was not yet available (pursuant to the contractual terms thereof) or had not yet been paid by the Vendor prior to the end of such 180 day period, then at such time thereafter as the Vendor shall have failed to pay such defaulted amount in accordance with the provisions of the Program Agreement, Vendor Assignment or other agreement with the Vendor providing such recourse), (ii) as to which the Servicer has repossessed the Equipment securing such Contract, or (iii) as to which the Servicer has determined, in accordance with the Customary Policies and Procedures, that the collectibility of the Contract has been impaired.

“Defaulted Contract Valuation Amount” means, as to any Defaulted Contract, the sum of (a) fifty percent of the Contract Principal Balance of such Defaulted Contract as of the first day of the Collection Period during which the Contract became a Defaulted Contract, (b) any Scheduled Payments due from but not yet paid by the Obligor in respect of such Defaulted Contract as of the first day of the Collection Period during which the Contract became a Defaulted Contract, and (c) any subsequent cash collections on such Contract. However the

 

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Defaulted Contract Valuation Amount shall never exceed the Contract Principal Balance plus Scheduled Payments due but not yet paid as of the first day of the Collection Period during which the Contract became a Defaulted Contract.

“Delaware Statutory Trust Act” has the meaning specified in the Trust Agreement.

“Delinquent Contract” means any Contract as to which all or a portion of a Scheduled Payment (constituting at least $25 of such Scheduled Payment due) is more than 60 days delinquent from its original due date.

“Deposit Date” means the Business Day immediately preceding each Payment Date.

“Depositor” means the “Depositor” as defined in the preamble hereto, or any successor entity thereto.

“Determination Date” means, with respect to any Payment Date, the second Business Day prior to such Payment Date.

“Discount Rate” means, with respect to each Contract, the annual percentage rate of interest for such Contract as set forth in CITEF’s receivables system.

“Dollar” and “$” means lawful currency of the United States of America.

“Eligible Contract” means each Contract owned (prior to its conveyance by the Financing Originator to CFUSA under the VFC Conveyancing Agreement or the Non-VFC Conveyancing Agreement, as the case may be; prior to its conveyance by CFUSA to the Depositor under the VFC Purchase Agreement or the Non-VFC Purchase Agreement, as the case may be, and prior to its conveyance by the VFC Trust to the Depositor pursuant to the VFC Assignment, if a VFC Contract) by the Financing Originator, CFUSA or the VFC Trust, as the case may be, and with respect to which each of the following is true (to the extent applicable to such type of Contract) at the time of its conveyance to the Trust on the Closing Date (or Substitution Transfer Date, as applicable):

(a)   the information with respect to the Contract, any Secondary Contract securing the obligations under such Contract, and the Financed Items related to the Contract, delivered to the Servicer by or at the direction of CFUSA under the Substitute VFC Purchase Agreement or the Non-VFC Purchase Agreement, as the case may be, or by or at the direction of the VFC Trust pursuant to the VFC Assignment is true and correct in all material respects;

(b)   immediately prior to the transfer of such Contract and any related Equipment (or security interest therein) or Applicable Security to the Depositor (and the Depositor’s concurrent transfer thereof to the Trust), CFUSA or the VFC Trust owned and had good and marketable title to (and following the transfer by CFUSA or the VFC Trust, the Depositor owns and has good and marketable title to) the Contracts, free and clear of any Liens, other than Permitted Liens; and immediately prior to the transfer of such Contract and any related Equipment (or security interest therein) or Applicable Security by the Financing

 

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Originator to CFUSA, such Contract was owned by the Financing Originator free and clear of any Liens, other than with respect to Permitted Liens;

(c)   the Contract is neither a Defaulted Contract nor a Delinquent Contract;

(d)   no provision of the Contract has been waived, altered or modified in any material respect, except as indicated in the Contract File;

(e)   the Contract is a valid and binding payment obligation of the Obligor and is enforceable in accordance with its terms (except as may be limited by applicable Insolvency Laws and the availability of equitable remedies);

(f)   the Contract is not subject to litigation, or to rights of rescission, setoff, counterclaim or defense and, to CFUSA’s or the Servicer’s knowledge, no such rights have been asserted or threatened with respect to the Contract;

(g)   the Contract, at the time it was made, had been originated in compliance (in all material respects) with applicable law, and did not violate the laws of the United States or any state in any material respect;

(h) (i)   the Contract and any related Financed Item or interest therein (other than Excluded Residual Investments) have not been sold, transferred, assigned or pledged by the Financing Originator or CFUSA or the VFC Trust (in the case of VFC Contracts) to any other Person (other than (a) the sale of Contracts and any Financed Item financed or interest therein to CFUSA or to the Depositor and then the VFC Trust and (b) the financed sale of Equipment to an End-User effected through an End-User Contract), (ii) if such Contract finances Equipment other than a Vehicle, such Contract is secured by a fully perfected lien or ownership interest in favor of the Financing Originator or, in the case of Equipment other than a Vehicle relating to the VFC Contracts, the Depositor, on or in respect of the related Equipment (other than as contemplated by the Minimum Value Filing Exception), or, if the Contract is a Vendor Loan, the Vendor Loan is secured by a fully perfected lien or ownership interest in favor of the Financing Originator or the VFC Trust in the related Applicable Security, or (iii) if such Contract finances a Vehicle, within 90 calendar days of the origination of such Contract by the Financing Originator or Third Party Source, all applicable state registration or recording procedures were initiated, and the Financing Originator’s or Third Party Source’s interest in such Vehicle will be or was noted or recorded within 180 days of such origination, or a certificate of title or similar evidence of recordation on which the Financing Originator’s or Third Party Source’s interest has been noted has been obtained;

(i)   if the Contract constitutes an “instrument” or “tangible chattel paper” for purposes of the UCC, there is not more than one “secured party’s original” counterpart of the Contract and such original counterpart is in the Contract File;

(j)   all filings (including filings of UCC financing statements) necessary (i) in respect of all Contracts, to evidence or perfect the conveyance or transfer of the Financing Originator’s ownership interest in the Contract, and the Financing Originator’s corresponding interest in the related Equipment or Applicable Security, as applicable, to CFUSA, and (ii) in respect of all Contracts to evidence or perfect the conveyance or transfer of CFUSA’s or the VFC

 

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Trust’s ownership interest in the Contract, and CFUSA’s corresponding interest in the related Equipment or Applicable Security, as applicable, to the Depositor (as well as the concurrent conveyance of such property hereunder, other than ownership interests in Equipment, from the Depositor to the Trust), have been made or provided for in all appropriate jurisdictions; provided, that (A) UCC financing statement filings with respect to Equipment or Applicable Security which name the Financing Originator as secured party have not been amended to indicate either CFUSA, the Depositor or the Trust as an assignee (although separate UCC filings were made against the Financing Originator’s interest in Applicable Security in each jurisdiction where a related Vendor is located) and (B) certificates of title with respect to Vehicles which name the Financing Originator or a Third Party Source as owner or lienholder have not been amended to name CFUSA, the Depositor or the Trust as the lienholder; and provided further, that only filings in the State of Delaware have been made in favor of the Trust as secured party against the Depositor as debtor describing as collateral (among other things) the Depositor’s ownership interest in Equipment, in respect of the security interest in Equipment owned by the Depositor which has been granted to the Trust pursuant to Section 2.01 hereof.

(k)   the Obligor is not, to CFUSA’s knowledge, subject to bankruptcy or other insolvency proceedings;

(l)   the Obligor’s billing address is in the United States or Puerto Rico, and the Contract is a U.S. dollar-denominated obligation;

(m)   if the Contract is not an “instrument” for purposes of the UCC, the Contract does not require the prior written notification to or consent of an Obligor or contain any other restriction on the transfer or assignment of the Contract, or, if the Contract constitutes an “instrument” for purposes of the UCC, all consents and approvals required by the terms of the Contract for the sale of the Contract hereunder have been received;

(n)   either (x) the obligations of the related Obligor under such Contract are irrevocable and unconditional and non-cancelable (it being understood that Contracts which are prepayable in accordance with their terms shall not, by virtue of that fact alone, be deemed revocable, conditional or cancelable) or, if not irrevocable and unconditional, have the benefit of a Vendor Guarantee or (y) with respect to certain Leases with Lessees that are governmental entities or municipalities, if such Lease is canceled in accordance with its terms, either (1) the Vendor that assigned such Lease to the Financing Originator is unconditionally obligated to repurchase such lease from the Financing Originator for a purchase price not less than the Contract Principal Balance of such Lease (as of the date of cancellation), or (2) pursuant to the Purchase and Sale Agreements, CFUSA has indemnified the Depositor against such cancellation in an amount at least equal to the Contract Principal Balance of such Lease (as of the date of cancellation), less any amounts paid by the Vendor pursuant to clause (1);

(o)   no selection procedure adverse to the interests of the Trust or the Equity Certificateholder was used in selecting the Contract for the Contract Pool;

(p)   the Obligor under the Contract is required to maintain casualty insurance or to self-insure with respect to the related Equipment in accordance with the Customary Policies and Procedures;

 

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(q)   the Contract constitutes tangible chattel paper, an account, an instrument or a general intangible, in each case as defined under the UCC;

(r)   the Contract is not a “consumer lease” as defined in Section 2A-103(1)(e) of the UCC;

(s)   if such Contract is a Lease, to the best knowledge of the Financing Originator, the Lessee thereunder has accepted and has had reasonable opportunity to inspect the related Equipment;

(t)   except as provided in clause (n) above, the Contract is not subject to any guarantee by the Financing Originator, nor has the Financing Originator established any specific credit reserve with respect to the related Obligor;

(u)   if such Contract is a Lease, such Lease is a “triple net lease” under which the Obligor is responsible for the maintenance, taxes and insurance with respect to the related Equipment in accordance with general industry standards applicable to such item of Equipment;

(v)   if such Contract is a Vendor Loan, such Vendor Loan is secured by an Eligible Secondary Contract having an aggregate Contract Principal Balance for such Eligible Secondary Contract (determined as of the relevant Cut-Off Date for such Vendor Loan) not less than the outstanding principal amount of such Vendor Loan;

(w)   such Contract is not an obligation of the United States of America or an agency, department, or instrumentality of the United States of America;

(x)   such Contract contains provisions customary to similar financing agreements for Financed Items, which provisions are sufficient and enforceable (except as may be limited by applicable Insolvency Laws and the availability of equitable remedies) to enable the Financing Originator (or its assignees, including the VFC Trust, the Depositor and the Trust) to realize against the Financed Items related thereto (to the extent such Financed Items secure or support the payment of the Contract);

(y)   if the Obligor in respect of such Contract is a state or local governmental entity or municipality, the conveyance of such a Contract under and pursuant to the Transaction Documents does not violate applicable state or municipal laws or regulations (if any) restricting or prohibiting the assignment of claims against or obligations of such Obligor; and

(z)   such Contract was originated or acquired by the Financing Originator in accordance with its Customary Policies and Procedures as in effect at the time of such origination or acquisition.

“Eligible Investments” means any of the following:

(i)   direct obligations of, and obligations fully guaranteed by, the United States of America, the Federal Home Loan Mortgage Corporation (if then rated “Aaa”

 

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by Moody’s), the Federal National Mortgage Association, or any agency or instrumentality of the United States of America the obligations of which are backed by the full faith and credit of the United States of America and which are non-callable;

(ii)   demand and time deposits in, certificates of deposit of, bankers’ acceptances issued by, or federal funds sold by any depository institution or trust company (including the Trustees or any Affiliate of the Trustees, acting in their commercial capacity) incorporated under the laws of the United States of America or any state thereof or the District of Columbia (or any domestic branch or agency of a foreign bank) and subject to supervision and examination by federal and/or state authorities, so long as, at the time of such investment or contractual commitment providing for such investment, the commercial paper or other short-term debt obligations of such depository institution or trust company have been rated at least “P-1” or higher from Moody’s, “A-1+” from Standard & Poor’s and, if rated by Fitch, “F1+” from Fitch; or any other demand or time deposit or certificate of deposit which is fully insured by the Federal Deposit Insurance Corporation and which is rated at least “P-1” by Moody’s;

(iii)   repurchase obligations with respect to any security described in either clause (i) or (ii) above and entered into with any institution whose commercial paper is at least rated “P-1” from Moody’s, at least “A-1+” by Standard & Poor’s and, if rated by Fitch, at least “F1+” by Fitch;

(iv)   securities bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any State thereof which have a credit rating of at least “A2” or “P-1” from Moody’s, at least “AAA” from Standard & Poor’s and, if rated by Fitch, at least “AAA” from Fitch, at the time of such investment;

(v)   commercial paper (which may be issued by CIT) having a rating of at least “P-1” from Moody’s, at least “A-1+” from Standard & Poor’s and, if rated by Fitch, at least “F1+” from Fitch, at the time of such investment;

(vi)   money market funds which are rated “Aaa” by Moody’s, at least “AAAm” or “AAAm-G” by Standard & Poor’s and, if rated by Fitch, at least “AAA” by Fitch, including funds which meet such rating requirements for which the Trustees or an affiliate of the Trustees serves as an investment advisor, administrator, shareholder servicing agent and/or custodian or subcustodian, notwithstanding that (i) such Trustee or an affiliate of such Trustee charges and collects fees and expenses from such funds for services rendered, (ii) such Trustee charges and collects fees and expenses for services rendered pursuant to this instrument, and (iii) services performed for such funds and pursuant to this instrument may converge at any time. (The Depositor and the Servicer specifically authorize such Trustee or an affiliate of such Trustee to charge and collect all fees and expenses from such funds for services rendered to such funds, in addition to any fees and expenses such Trustee may charge and collect for services rendered pursuant to this instrument); and

(vii)   any other investments approved by the Rating Agencies.

“Eligible Secondary Contract” shall mean each Secondary Contract

 

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(i)   that satisfies all the criteria set forth in the definition of “Eligible Contract” except clauses (b), (h) (with respect to ownership by the Financing Originator of the Contract) and (w) thereof, and except that the term “Obligor” shall mean “End-User” in all such criteria;

(ii)   with respect to which Secondary Contract and the proceeds thereof the Financing Originator (or, in the case of VFC Contracts, the VFC Trust, as assignee) has a duly perfected first priority lien; and

(iii)   with respect to which if such Secondary Contract secures a Vendor Loan constituting a Contract, the transfer of the Financing Originator’s security interest in such Secondary Contract and the proceeds thereof to CFUSA, the transfer of CFUSA’s interest so acquired to the Depositor, and, if applicable, the Depositor’s transfer of its interest therein to the VFC Trust and the VFC Trust’s transfer of such interest back to the Depositor, is effective to create in favor of the Depositor a lien therein and such lien has been duly perfected.

“Eligible Servicer” means CITEF or any of its Affiliates, the Trustees or any other Person qualified to act as Servicer of the Contracts under applicable federal and state laws and regulations, which Person services not less than $100,000,000 in outstanding principal amount of equipment financing contracts.

“End-User” shall mean any party that uses the Financed Items pursuant to an End-User Contract.

“End-User Contract” shall mean any CSA, Secured Note, Lease, IPA, or other Financing Agreement covering Financed Items originated or acquired by an Originator.

“Equipment” means with respect to any Contract, the tangible assets constituting “goods” within the meaning of the UCC, in each case financed or leased by an Obligor pursuant to a Contract, or which otherwise provide security for the payment of amounts payable thereunder.

“Equity Certificate” has the meaning specified in the Trust Agreement.

“Equity Certificateholder” means the Person in whose name the Equity Certificate is registered in the Certificate Register.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“Event of Default” has the meaning specified in the Indenture.

“Exchange Act” means the Securities Exchange Act of 1934, as amended or supplemented from time to time.

“Excluded Amounts” means (i) any collections on deposit in the Collection Account or otherwise received by the Servicer on or with respect to the Contract Pool or related Equipment, which collections are attributable to any taxes, fees or other charges imposed by any

 

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Governmental Authority, (ii) any collections representing reimbursements of insurance premiums or payments for services that were not financed by the applicable Originator, (iii) collections relating to security deposits, and (iv) collections representing Late Charges, documentation fees, administrative charges or extension fees on any Contract, or maintenance premiums in respect of related Equipment.

“Excluded Residual Investments” means Residual Investments, including Guaranteed Residual Investments.

“FDIC” shall mean the Federal Deposit Insurance Corporation, or any successor thereto.

“Financed Items” means Equipment and other property and services that are permitted to be financed under Contracts in accordance with Customary Policies and Procedures of the Financing Originator.

“Financing Agreement” means each financing agreement covering Financed Items, other than a CSA, a Secured Note, a Lease or an IPA.

“Financing Originator” means CITEF.

“Fitch” means Fitch, Inc., or any successor thereto.

“Governmental Authority” means the United States of America, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government.

“Guaranteed Residual Investment” means each Residual Investment with respect to which the Financing Originator may look to either the Vendor or to the related Obligor on an End-User Contract constituting a Lease, and not just the value of the related Equipment itself, to recover its full Residual Investment.

“Holder” has the meaning specified in the Indenture.

“Indebtedness” means, with respect to any Person at any date, without duplication, (a) all indebtedness of such person for borrowed money or for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices) or which is evidenced by a note, bond, debenture or similar instrument, (b) all obligations of such Person under capital leases, (c) all obligations of such Person in respect of acceptances or letters of credit issued or created for the account of such Person, (d) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, and (e) obligations of such Person under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a) through (d) above.

 

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“Indenture” means the Indenture, dated as of the date hereof, between the Issuer and the Indenture Trustee, as amended, supplemented or otherwise modified from time to time.

“Indenture Trustee” means the Person acting as Indenture Trustee under the Indenture, its successors in interest and any successor trustee under the Indenture.

“Independent”, when used with respect to any specified Person, means such a Person who (i) is in fact independent of the Issuer, the Depositor or the Servicer, (ii) is not a director, officer or employee of any Affiliate of the Issuer, the Depositor or the Servicer, (iii) is not a person related to any officer or director of the Issuer, the Depositor or the Servicer or any of their respective Affiliates, (iv) is not a holder (directly or indirectly) of more than 10% of any voting securities of the Issuer, the Depositor or the Servicer or any of their respective Affiliates, and (v) is not connected with the Issuer, the Depositor or the Servicer as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

“Independent Accountant” has the meaning specified in Section 9.04.

“Ineligible Contract” has the meaning specified in Section 7.06.

“Initial Class A-1 Principal Amount” means $[__________].

“Initial Class A-2 Principal Amount” means $[__________].

“Initial Class A-3 Principal Amount” means $[__________].

“Initial Class B Principal Amount” means $[__________].

“Initial Class C Principal Amount” means $[__________].

“Initial Class D Principal Amount” means $[__________].

“Initial Contract Assets” means those Contract Assets conveyed to the Trust on the Closing Date.

“Initial Contract Pool Principal Balance” is $[__________].

“Initial Contracts” means those Contracts conveyed to the Trust on the Closing Date.

“Initial Cut-Off Date” means [__________].

“Initial Principal Amount” means, when used in the context of a reference to an individual Class of Notes, the initial principal amount applicable to such Class as defined above.

“Insolvency Event” means, with respect to a specified Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable Insolvency Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or

 

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ordering the winding-up or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (b) the commencement by such Person of a voluntary case under any applicable Insolvency Law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under such law, taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property; or (c) or the making by such Person of any general assignment for the benefit of creditors; or (d) the failure by such Person generally to pay its debts as such debts become due; or (e) the admission by such Person in writing of its inability generally to pay its debts when the same become due; or (f) the taking of action by such Person in furtherance of any of the foregoing.

“Insolvency Laws” means the Bankruptcy Code of the United States of America and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.

“Insolvency Proceeds” has the meaning specified in Section 10.01.

“Insurance Policy” means, with respect to any Contract, an insurance policy covering physical damage to or loss of the related Equipment.

“Insurance Proceeds” means, depending on the context, any amounts payable or any payments made, to the Servicer (or Financing Originator) under any Insurance Policy.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Investment Earnings” means, the investment earnings (net of losses and investment expenses) on amounts on deposit in the Collection Account, Note Distribution Account and the Reserve Account.

“IPA” means each installment payment agreement, including as applicable, schedules, subschedules, supplements and amendments, pursuant to which the relevant Originator financed the purchase or acquisition of specified assets by an Obligor for specified monthly, quarterly, semiannual or annual payments.

“Issuer” is defined in the preamble hereto.

“Late Charges” means any late payment fees paid by Obligors on Contracts.

“Lease” means each agreement constituting a “lease” within the meaning of Section 2A-103 of the UCC, and including, as applicable, schedules, subschedules, supplements and amendments to a master lease, pursuant to which the Originator, as lessor, leased specified assets to a Lessee at a specified monthly, quarterly, semiannual or annual rental.

“Lessee” means, with respect to any Lease, the Obligor with respect to such Lease.

 

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“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), equity interest, participation interest, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including, without limitation, any conditional transfer or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing.

“Liquidated Contract” means, as to any Collection Period, any Contract or Defaulted Contract (a) which the Servicer has determined is uncollectible in accordance with the Customary Policies and Procedures, or (b) for which the Equipment securing such Contract has been disposed.

“Liquidation Expenses” means, with respect to any Liquidated Contract, the aggregate amount of all out-of-pocket expenses reasonably incurred by the Servicer (including amounts paid to or expenses incurred by any subservicer, other than subservicing fees, if any) in accordance with Customary Policies and Procedures in connection with the repossession, refurbishing and disposition of any related Equipment, and other out-of-pocket costs related to the liquidation of any such Equipment, including reasonable attorneys fees incurred in the attempted collection of any amount owing pursuant to such Liquidated Contract, and including amounts determined by the Servicer in its reasonable discretion as payable in respect of any sales, use, personal property or other taxes assessed or to be assessed on repossessed or liquidated Equipment.

“Liquidation Loss” means, with respect to any Liquidated Contract, the amount, if any, by which (a) the Required Payoff Amount for such Liquidated Contract as of the date such Contract became a Liquidated Contract exceeds (b) that portion of the Liquidation Proceeds for such Liquidated Contract allocated to the Issuer.

“Liquidation Proceeds” means, with respect to a Liquidated Contract, proceeds from the transfer, lease or re-lease of the related Financed Items, Insurance Proceeds, and any other recoveries with respect to such Liquidated Contract and the related Financed Items (including, without limitation, amounts received pursuant to a Program Agreement and Scheduled Payments received on such Defaulted Contracts), but net of Liquidation Expenses, Late Charges, amounts payable to a Vendor in respect of (and in amounts not exceeding) amounts previously paid by such Vendor in respect of such Contract under Vendor recourse provisions, and amounts, if any, so received that are required to be refunded to the Obligor on such Contract.

“Material Adverse Effect” means, with respect to any event or circumstance, a material adverse effect on:

(i)     the ability of CFUSA, the Financing Originator, the VFC Trust, the Depositor, the Trust or the Servicer to perform in all material respects its obligations under this Agreement or any other Transaction Document;

(ii)   the validity or enforceability of this Agreement, any other Transaction Document, or the Contracts, or the collectibility of the Contracts; or

 

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(iii)     the status, existence, perfection, priority or enforceability of the Trust’s interest in the Contracts and the other Trust Assets.

“Material Modification” means a termination or release (including pursuant to prepayment), or an amendment, modification or waiver, or equivalent similar undertaking or agreement, by the Servicer with respect to a Contract which would not otherwise be permitted under the standards and criteria set forth in Sections 5.08, 5.09 and/or 5.10 hereof.

“Maturity Date” means, as applicable, the Class A-1 Maturity Date, Class A-2 Maturity Date, Class A-3 Maturity Date, Class B Maturity Date, Class C Maturity Date or Class D Maturity Date.

“Minimum Value Filing Exception” means the variation from the Financing Originator’s normal policies and practices with respect to filing UCC financing statements against an Obligor describing Equipment which is the subject of a Contract, in each case as set forth in Exhibit J hereto.

“Monthly Report” has the meaning specified in Section 9.01.

“Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.

“Nonrecoverable Advance” means with respect to any Determination Date and any Contract, the amount, if any, advanced by the Servicer pursuant to Section 5.14 which the Servicer has as of such Determination Date determined in good faith will not be ultimately recoverable by the Servicer.

“Non-VFC Contract Assets” means the Contract Assets pertaining to the Non-VFC Contracts.

“Non-VFC Contracts” means Contracts conveyed by CFUSA to the Depositor pursuant to the Non-VFC Purchase Agreement, as listed in Schedule A to the Non-VFC Purchase Agreement.

“Non-VFC Conveyancing Agreement” means the Non-VFC Conveyancing Agreement, dated as of [__________], by and among the Financing Originator and CFUSA as the same may be amended, supplemented, restated or otherwise modified from time to time.

“Non-VFC Purchase Agreement” means the Non-VFC Purchase and Sale Agreement, dated [__________], by and among CFUSA, as the seller, and the Depositor, as purchaser, as the same may be amended, supplemented, restated or otherwise modified from time to time.

“Note” means any one of the notes of the Trust of any Class executed and authenticated in accordance with the Indenture.

“Note Distribution Account” means the account established and maintained as such pursuant to Section 7.01.

 

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“Note Interest Distributable Amount” means to the extent applicable, the sum of the Class A-1 Interest Distributable Amount, the Class A-2 Interest Distributable Amount, the Class A-3 Interest Distributable Amount, the Class B Interest Distributable Amount, the Class C Interest Distributable Amount and the Class D Interest Distributable Amount.

“Note Principal Distributable Amount” means with respect to any Payment Date, the Total Principal Payment Amount, provided, however, that in no event may the Note Principal Distributable Amount with respect to any Payment Date exceed the Principal Amount of the Notes immediately prior to such Payment Date.

“Note Register” has the meaning given such term in Section 2.04 of the Indenture.

“Noteholder” means any registered holder of a Note.

“Notes” means the Class A-1, Class A-2, Class A-3, Class B, Class C and Class D Notes.

“Obligor” means, with respect to any Contract, the Person or Persons obligated to make payments with respect to such Contract, including any guarantor thereof (and including, with respect to a Contract consisting of a Vendor Loan, the Vendor obligated in respect of such Vendor Loan).

“Officer’s Certificate” means, with respect to any Person, a certificate signed by an authorized officer of such Person and delivered to the party entitled to receipt thereof under any applicable Transaction Document.

“Opinion of Counsel” means a written opinion of counsel, who may be counsel (including internal counsel) for the Depositor or the Servicer and who shall be reasonably acceptable to the Trust and the Indenture Trustee.

“Originator” means, with respect to each Contract, the party that is the original lessor or financing party thereunder.

“Outstanding” has the meaning specified in the Indenture.

“Owner Trustee” means [_______________], not in its individual capacity, but solely as Owner Trustee under the Trust Agreement, its successors in interest and any successor owner trustee under the Trust Agreement.

“Payment Date” shall mean the [_____] ([__]th) day of each calendar month or, if such [_____] ([__]th) day is not a Business Day, the next succeeding Business Day, with the first such Payment Date being [__________][; provided , that solely with respect to Class A-1 Notes, principal and interest will also be paid on the Class A-1 Maturity Date to the extent that any of the Class A-1 Notes remain outstanding after the Payment Date in [__________], and the Class A-1 Maturity Date will be a Payment Date solely for such purposes].

“Paying Agent” means any Person described as such in Section 7.04(b).

 

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“Permitted Liens” means

(a)          with respect to Contracts in the Contract Pool:

(i)           Liens for state, municipal or other local taxes if such taxes shall not at the time be due and payable or if the Depositor shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto;

(ii)          Liens in favor of CFUSA created by the Financing Originator pursuant to the VFC Conveyancing Agreement or the Non-VFC Conveyancing Agreement, as the case may be, or Liens in favor of the Depositor created pursuant to the Purchase and Sale Agreements or Liens in favor of the VFC Trust created pursuant to the VFC Pooling Agreement, in each case transferred to the Trust pursuant hereto;

(iii)        Liens created pursuant to this Agreement in favor of the Trust; and

(iv)        Liens in favor of the Indenture Trustee created pursuant to the Indenture and/or this Agreement; and

(b)          with respect to the related Equipment:

(i)           materialmen’s, warehousemen’s, mechanics’ and other liens arising by operation of law in the ordinary course of business for sums not due;

(ii)          Liens for state, municipal or other local taxes if such taxes shall not at the time be due and payable or if the Depositor shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto;

(iii)        Liens in favor of CFUSA created by the Financing Originator pursuant to the VFC Conveyancing Agreement or the Non-VFC Conveyancing Agreement, as the case may be, or Liens in favor of the Depositor created pursuant to the Purchase and Sale Agreements, in each case transferred to the Trust pursuant hereto or Liens in favor of the Depositor created pursuant to the VFC Purchase and Sale Agreement;

(iv)        Liens created pursuant to this Agreement in favor of the Trust;

(v)          Liens in favor of an Originator which have been transferred to the Financing Originator and pursuant to the Purchase and Sale Agreements by the Financing Originator to the Depositor (through CFUSA and the VFC Conveyancing Agreement or the Non-VFC Conveyancing Agreement, as the case may be, in the case of CITEF Contracts, and through CFUSA, the Depositor and the VFC Trust and the VFC Assignment in the case of the VFC Contracts) and in each case transferred to the Trust pursuant hereto;

 

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(vi)        Liens in favor of the Indenture Trustee created pursuant to the Indenture and/or this Agreement;

(vii)       Liens created pursuant to:

(A)        the Pooling and Servicing Agreement among CIT EC-EF 2001-A, the depositor, CFUSA and the servicer, dated as of August 1, 2001, and the Indenture between CIT EC-EF 2001-A and Allfirst Bank, dated as of August 1, 2001, in favor of CIT EC-EF 2001-A; and

(B)         the Pooling and Servicing Agreement among CIT Equipment Collateral 2003-EF1, the depositor, CFUSA and the servicer, dated as of August 1, 2003, and the Indenture between CIT Equipment Collateral 2003-EF1 and The Bank of New York, dated as of August 1, 2003, in favor of CIT Equipment Collateral 2003-EF1;

(viii)     Interests in favor of a Vendor which are subject to the prior payment of all Obligor obligations in respect of Scheduled Payments on the related Contract; and

(ix)        Liens granted by the End-Users which are subordinated to the interest of the Trust in such Equipment.

“Person” means any individual, corporation, estate, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.

“Pledged Revenues” means (i) all Scheduled Payments on the Contracts, including (without duplication) Scheduled Payments on Defaulted Contracts, received on or after the Cut-Off Date (excluding the Excluded Amounts); (ii) any Prepayments received on the Contracts on or after the Cut-Off Date (other than (a) in the case of a Lease, any portion thereof allocated to the Depositor, or (b) in the case of a Prepaid Contract for which a substitution has been made in accordance with Section 2.04 of this Agreement, that portion thereof to which the Depositor is entitled pursuant to Section 2.04); (iii) the Purchase Amount of any Contracts purchased by CFUSA in accordance with Section 7.06 of this Agreement (other than any portion thereof attributable in the case of a Lease to the Excluded Residual Investment of the related Equipment); (iv) the amount paid by CFUSA or the Depositor to purchase the Contracts pursuant to Section 7.08 of this Agreement; (v) that portion of the Liquidation Proceeds received in respect of any Contracts and the disposition of the related Equipment on or after the Cut-Off Date and allocated to the Trust; and (vi) any Investment Earnings on the investment of amounts credited to the Collection Account and the Note Distribution Account. Pledged Revenues shall not include any amounts received with respect to any Excluded Residual Investment.

“Pooling Agreement” means this Pooling and Servicing Agreement, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.

 

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“Prepaid Contract” means any Contract that has terminated or been prepaid in full prior to its scheduled expiration date (including because of a Casualty Loss), other than a Defaulted Contract.

“Prepayment” means with respect to any Collection Period for any Contract, a partial or full prepayment of amounts due and owing under such Contract.

“Principal Amount” means, with respect to a Class of Notes, the aggregate Initial Principal Amount thereof reduced by (i) the aggregate amount of any payments applied in reduction of such principal amount and (ii) the aggregate amount of any payments then on deposit in the Note Distribution Account, if any, for such Class of Notes established in accordance with the Indenture and to be applied in reduction of such principal amount in accordance with such Indenture.

“Principal Deficiency Amount” means, with respect to any Payment Date, the excess, if any, of (i) the Principal Amount of the Notes (after giving effect to all distributions of principal from the Available Pledged Revenues (determined without regard to clause (iv) of the definition thereof) on such Payment Date), over (ii) the Contract Pool Principal Balance as of the related Accounting Date.

“Program Agreement” means each vendor finance program agreement pursuant to which End-User Contracts originated by a Vendor are assigned to the Financing Originator.

“Prospectus” has the meaning given such term in the Underwriting Agreement.

“Purchase Amount” means, with respect to Ineligible Contracts, on any date of determination, the aggregate Required Payoff Amount for such Ineligible Contracts as of the related Accounting Date.

“Purchase and Sale Agreements” means, collectively, the Non-VFC Purchase Agreement, the Substitute VFC Purchase Agreement and the VFC Purchase Agreement.

“Purchase Price” means, with respect to any Contract conveyed on the Closing Date (or any Subsequent Transfer Date, as applicable), an amount equal to the Contract Principal Balance of such Contract as of the applicable Cut-Off Date.

“Qualified Eligible Investments” means Eligible Investments acquired by the Indenture Trustee in its name and in its capacity as Indenture Trustee, which are held by the Indenture Trustee in the Trust Accounts and with respect to which (a) the Indenture Trustee has noted its interest therein on its books and records, and (b) the Indenture Trustee has purchased such investments for value without notice of any adverse claim thereto (and, if such investments are securities or other financial assets or interests therein, within the meaning of Section 8-102 of the UCC as enacted in the State of New York, without acting in collusion with a securities intermediary in violating such securities intermediary’s obligations to entitlement holders in such assets, under Section 8-504 of such UCC, to maintain a sufficient quantity of such assets in favor of such entitlement holders), and (c) either (i) such investments are in the possession of the Indenture Trustee, or (ii) such investments, (A) if certificated securities and in bearer form, have been delivered to the Indenture Trustee, or in registered form, have been delivered to the

 

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Indenture Trustee and either registered by the issuer in the name of the Indenture Trustee or endorsed by effective endorsement to the Indenture Trustee or in blank; (B) if uncertificated securities, the ownership of which has been registered to the Indenture Trustee on the books of the issuer thereof (or another person, other than a securities intermediary, either becomes the registered owner of the uncertified security on behalf of the Indenture Trustee or, having previously become the registered owner, acknowledges that it holds for the Indenture Trustee); or (C) if securities entitlements (within the meaning of Section 8-102 of the UCC as enacted in the State of New York) representing interests in securities or other financial assets (or interests therein) held by a securities intermediary (within the meaning of said Section 8-102), a securities intermediary indicates by book entry that a security or other financial asset has been credited to the Indenture Trustee’s securities account with such securities intermediary. Any such Qualified Eligible Investment may be purchased by or through the Indenture Trustee or any of its Affiliates.

“Qualified Institution” means (a) the corporate trust department of the Indenture Trustee or (b) a depository institution organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any domestic branch of a foreign bank), (i) (A) which has (or the parent corporation of which has) either (1) a long-term unsecured debt rating acceptable to the Rating Agencies or (2) a short-term unsecured debt rating or certificate of deposit rating acceptable to the Rating Agencies or (B) which is otherwise acceptable to the Rating Agencies and (ii) whose deposits are insured by the FDIC.

“Rating Agency” as of any date means each of the nationally recognized statistical rating organizations requested by the Depositor to provide ratings on the Notes which is rating the Notes on such date.

“Rating Agency Condition” means, with respect to any action or series of related actions or proposed transaction or series of related proposed transactions, that each Rating Agency shall have notified the Depositor, the Owner Trustee and the Indenture Trustee in writing that such action or series of related actions or the consummation of such proposed transaction or series of related transactions will not result in a Ratings Effect.

“Ratings Effect” means, with respect to any action or series of related actions or proposed transaction or series of related proposed transactions, a reduction or withdrawal of the rating of any outstanding Class with respect to which a Rating Agency has previously issued a rating as a result of such action or series of related actions or the consummation of such proposed transaction or series of related transactions.

“Reallocated Principal” means, with respect to any Payment Date, an amount equal to (a) the Total Principal Payment Amount, less (b) the sum of the Class A Principal Payment Amount and the Class B Principal Payment Amount.

“Record Date” means, with respect to any Payment Date, the Business Day immediately preceding such Payment Date (so long as the Notes are in book-entry form) or the last day of the prior calendar month (if certificated Notes have been issued).

 

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“Related Collection Period Pledged Revenues” means, with respect to any Payment Date, the amount of Pledged Revenues in the Collection Account as of the Deposit Date which were received by the Servicer during the related Collection Period, including all Liquidation Proceeds as to Defaulted or Liquidated Contracts (other than in respect of Excluded Residual Investment) so received but excluding any Purchase Amounts.

“Replaced Assets” has the meaning assigned such term in Section 2.04.

“Replaced Contracts” has the meaning assigned such term in Section 2.04.

“Required Holders” means (i) prior to the payment in full of the Class A Notes, Class A-1 Noteholders, Class A-2 Noteholders, and/or Class A-3 Noteholders, holding Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, evidencing more than 66 2/3% of the Aggregate Principal Amount of all Class A Notes Outstanding, (ii) from and after the payment in full of the Class A Notes, Holders of Class B Notes holding Class B Notes evidencing more than 66 2/3% of the Aggregate Principal Amount of all Class B Notes Outstanding, (iii) from and after the payment in full of the Class B Notes, Holders of Class C Notes holding Class C Notes evidencing more than 66 2/3% of the Aggregate Principal Amount of all Class C Notes Outstanding, and (iv) from and after the payment in full of the Class C Notes, Holders of the Class D Notes holding Class D Notes evidencing more than 66 2/3% of the Aggregate Principal Amount of all Class D Notes Outstanding.

“Required Payoff Amount” means, with respect to any Collection Period for a Contract, the sum of (i) the Scheduled Payment due in such Collection Period, together with any Scheduled Payments due in prior Collection Periods but not yet received, plus (ii) the Contract Principal Balance of such Contract (after taking into account the Scheduled Payment due in such Collection Period whether or not actually received and, with respect to Contracts that are Defaulted Contracts, the Contract Principal Balance plus Scheduled Payments due but not yet paid on such Contract as of the first day of the Collection Period during which it became a Defaulted Contract without giving effect to the Defaulted Contract Valuation Amount) less any subsequent cash collections on such contract.

“Required Reserve Amount” means with respect to any Payment Date, an amount equal to the greater of (a)(x) if as of the end of the related collection period the Cumulative Loss Ratio does not exceed the Cumulative Loss Trigger (and has not exceeded the Cumulative Loss Trigger for the preceding two collection periods), [__]% of the current Contract Pool Principal Balance, or (y) if, as of the end of the related collection period, the Cumulative Loss Ratio exceeds the Cumulative Loss Trigger (or has exceeded the Cumulative Loss Trigger in any of the preceding two collection periods), [__]% of the current Contract Pool Principal Balance, and (b) $[__________]; provided, that in no event will the Required Reserve Amount exceed the Aggregate Principal Amount of the Notes as of any date of determination.

“Requirements of Law” for any Person means the certificate of incorporation or articles of association and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or order or determination of an arbitrator or Governmental Authority, in each case applicable to or binding upon such Person or to which such Person is subject, whether Federal, state or local (including, without limitation, usury laws,

 

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the Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System).

“Reserve Account” means the Reserve Account established and maintained pursuant to Section 7.01 hereof.

“Reserve Account Agreement” means the Reserve Account Agreement dated as of [__________], among the Depositor, the Trust, the Indenture Trustee and the Servicer as the same may be amended, supplemented or otherwise modified in accordance with the terms thereof.

“Residual Investment” means, with respect to certain Leases, any funds that the Financing Originator shall have advanced against all or any portion of the anticipated residual value of the leased Equipment upon the expiration of such Lease in accordance with its terms, and in excess of the discounted present value of the rental payments due under such Lease.

“Responsible Officer” means, with respect to the Owner Trustee, any officer in its Corporate Trust Administration Department (or any similar group of a successor Owner Trustee) who has primary responsibility for administering the Trust or the Trust Agreement, or to whom a corporate trust matter is referred because of knowledge of, familiarity with, and authority to act with respect to a particular matter.

“Scheduled Payment” means, with respect to any Contract, the monthly or quarterly or semi-annual or annual rent or financing (whether principal or principal and interest) payment or other payment scheduled to be made by the related Obligor under the terms of such Contract; it being understood that Scheduled Payments do not include any Excluded Amount or Excluded Residual Investment.

“Schedule of Contracts” means the schedule of Contracts which are conveyed to the Trust pursuant to this Agreement and the Transfer Agreement, executed and delivered on the Closing Date, which schedule shall identify by any reasonable means or designation the Financing Originator with respect to each Contract identified in such Schedule, and which includes the Contracts listed on Exhibit C hereto. Such Schedule shall be supplemented from time to time (a) by each subsequent Substitution Schedule of Contracts with respect to each Substitution Transfer Agreement and related Substitute Contracts, which Schedules of Contracts shall be deemed incorporated and made a part of the original Schedule of Contracts on Exhibit C hereto; and (b) by the Servicer from time to time to reflect the release by and removal from the Trust Assets of (i) Contracts released in connection with (A) in respect of a Contract becoming a Prepaid Contract in accordance herewith or having its final Scheduled Payment paid in full in accordance with the Contract, or (B) in respect of a repurchase from the Trust through payment of a Purchase Amount, and (ii) Replaced Contracts. The comprehensive Schedule of Contracts is to be maintained by the Servicer (with copies thereof, as the same shall be supplemented or amended as described above, to be provided promptly to the Trust). With respect to the Transfer Agreement (or Substitution Transfer Agreement, as applicable), “Schedule of Contracts” shall mean the schedule attached thereto identifying the Contracts being conveyed thereby.

 

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“Schedule of Representations” means the Schedule of Representations and Warranties set forth on Exhibit G hereto.

“Secondary Contract” shall mean, with respect to a Vendor Loan, each End-User Contract securing such Vendor Loan.

“Secured Note” means each promissory note with a related security interest evidenced by written agreement, pursuant to which the purchase of specified assets by an Obligor or End-User is financed for specified monthly, quarterly, semiannual or annual payments.

“Securities” means the Notes and the Equity Certificate, or any of them.

“Securities Act” means the Securities Act of 1933, as amended from time to time.

“Securityholders” means the Holders of the Notes or the Equity Certificate.

“Servicer” means initially CITEF, until any Successor Servicer is appointed pursuant to Article VIII hereof, and thereafter, means the Successor Servicer so appointed.

“Servicer Advance” means, with respect to any Payment Date, the amounts, if any, deposited by the Servicer in the Collection Account for such Payment Date in respect of Scheduled Payments pursuant to Section 5.14 hereof.

“Servicer Default” has the meaning given such term in Section 8.01.

“Servicer Letter of Credit” has the meaning given such term in Section 7.01(b).

“Servicing Fee” has the meaning specified in Section 5.18 hereof.

“Servicing Fee Percentage” means [__]%.

“Servicing Officer” means any officer of the Servicer involved in, or responsible for, the administration and servicing of Contracts.

“Servicing Standard” means, with respect to the servicing and collection activities of the Servicer concerning the Contract Assets, the conduct of such activities with reasonable care, using that degree of skill and attention that the Financing Originator for such Contract Assets exercises with respect to all comparable contracts and related assets that it services for itself or others, and in accordance with Customary Policies and Procedures and applicable law.

“Servicing Transfer” is defined in Section 8.02(b).

“Solvent” means, as to any Person at any time, that (a) the fair value of the Property of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(31) of the Bankruptcy Code; (b) the present fair saleable value of the Property of such Person in an orderly liquidation of such Person is not less than the

 

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amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its Property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital.

“Standard & Poor’s” means Standard & Poor’s Ratings Service, a division of The McGraw Hill Companies, or any successor thereto.

“Subordinated Notes” means the Class B Notes, the Class C Notes and the Class D Notes.

“Subsidiary” means with respect to a Person, any corporation or other entity of which securities or other ownership interests (whether directly or indirectly in connection with contract rights) having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.

“Substitute Contract” means any Contract conveyed, assigned and transferred by the Depositor or CFUSA to the Trust pursuant to Section 2.04.

“Substitute Contract Assets” means Contract Assets relating to Substitute Contracts.

“Substitute Contract Qualification Conditions” means, with respect to any Substitute Contract being transferred to the Trust pursuant to Section 2.04, each of the following:

(1)   the accuracy of each of the following statements as of the related Cut-Off Date for such Contract:

(a)   the Contract Principal Balance of such Substitute Contract is not less than that of the related Replaced Contract[s];

(b)   no adverse selection procedure shall have been employed in the selection of such Substitute Contract from the Financing Originator’s portfolio;

(c)   each such Substitute Contract satisfied the criteria set forth in the definition of Eligible Contract herein; and

(d)   if the Replaced Contract for which such Substitute Contract is being substituted was a VFC Contract, then such Substitute Contract is itself a VFC Contract, and if such Replaced Contract is a CITEF Contract, then such Substitute Contract is itself a CITEF Contract; and

 

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(2)   with respect to any such Substitute Contract which is replacing a Replaced Contract of the type described in clause (a) of the definition of Substitution Event (a “Type”), the condition that after giving effect to such transfer, the Contract Pool Principal Balance of all Substitute Contracts transferred to the Trust since the Closing Date in respect of Replaced Contracts of the same Type shall not exceed 10% of the Contract Pool Principal Balance as of the Initial Cut-Off Date.

“Substitute Transferred Assets” has the meaning assigned such term in Section 2.04.

“Substitute VFC Purchase Agreement” means the Substitute VFC Purchase and Sale Agreement, dated as of [__________], among CFUSA and the Depositor, as the same may be amended, supplemented, restated or otherwise modified from time to time.

“Substitution Assignment Agreement” means, with respect to any Substitute Contracts, the agreement between CFUSA and the Depositor pursuant to which CFUSA transfers the identified Substitute Contracts to the Depositor pursuant to the Non-VFC Purchase Agreement or the Substitute VFC Purchase Agreement, as the case may be.

“Substitution Cut-Off Date” means the date specified as such for the relevant Substitute Contracts, in the related Substitution Transfer Agreement.

“Substitution Event” means, with respect to any transfer of a related Substitute Contract to the Trust under Section 2.04, the occurrence of any of the following: (a) one or more Contracts identified in the related Substitution Notice as being an intended Replaced Contract with respect to such Substitute Contract, has become a Defaulted Contract, (b) one or more Contracts identified in the related Substitution Notice as being an intended Replaced Contract with respect to such Substitute Contract, has been subjected to a Material Modification, (c) one or more Contracts identified in the related Substitution Notice as being an intended Replaced Contract with respect to such Substitute Contract, has become an Ineligible Contract, or (d) one or more Contracts identified in the related Substitution Notice as being an intended Replaced Contract with respect to such Substitute Contract, has become a Prepaid Contract and the Trust has not yet received the related Prepayment.

“Substitution Notice” means, with respect to any transfer of Substitute Contracts to the Trust pursuant to Section 2.04 (and the Financing Originator’s corresponding conveyance and assignment of such Substitute Contracts), a notice, which shall be given at least five days prior to the related Substitution Transfer Date, identifying the Substitute Contracts to be transferred, the Contract Principal Balance of such Substitute Contracts and the related Substitution Event (with respect to an identified Contract or Contracts then in the Contract Pool, which will upon such substitution become a Replaced Contract) to which such Substitute Contract relates, with such notice to be signed both by the Depositor and the Financing Originator.

“Substitution Schedule of Contracts” means a schedule or list, substantially in the form of the initial Schedule of Contracts delivered on the Closing Date, but listing each Substitute Contract being transferred to the Trust pursuant to a related Substitution Transfer

 

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Agreement, as well as the related Replaced Contracts being removed from the existing Contract Pool by virtue of such substitution.

“Substitution Transfer Agreement” means the agreement identified as such in Section 2.04(b) hereof.

“Substitution Transfer Date” means any date on which Substitute Contracts are transferred to the Trust.

“Successor Servicer” has the meaning given such term in Section 8.02(b).

“Tax Opinion” means, with respect to any action, an Opinion of Counsel to the effect that, for federal income tax purposes, (i) following such action the Trust will not be deemed to be an association (or publicly traded partnership) taxable as a corporation, (ii) following such action the Trust will be disregarded as a separate entity from the Depositor, and (iii) such action will not affect the tax characterization as debt of Notes of any outstanding Class issued by the Trust for which an Opinion of Counsel has been provided that such Notes are debt.

“TCC Assignment” has the meaning given such term in the VFC Conveyancing Agreement.

“TCC Contract Assets” has the meaning given such term in the VFC Conveyancing Agreement, provided that the meaning solely references Contract Assets with respect to TCC Contracts originated or acquired by CITEF.

“TCC Contracts” has the meaning given such term in the VFC Conveyancing Agreement, provided that the meaning solely references Contracts originated or acquired by CITEF.

“TCC Financing Originators” has the meaning given to such term in the VFC Conveyancing Agreement.

“Third Party Source” means any affiliate of CITEF, Vendor or other manufacturer, dealer, lender or intermediary from which CITEF purchased a Contract.

“Total Principal Payment Amount” means, with respect to any Payment Date, the difference between (a) the aggregate Principal Amount of all Classes of Notes immediately prior to that Payment Date and (b) the Contract Pool Principal Balance as of the related Accounting Date; provided, that the amount referred to in clause (b) shall be deemed to be zero on any Payment Date on which the Contract Pool Principal Balance is less than the amount on deposit in the Reserve Account.

“Transaction Documents” means this Pooling Agreement, the Transfer Agreement, any Substitution Transfer Agreement, the VFC Conveyancing Agreement, the VFC Purchase Agreement, the VFC Assignment, the VFC Pooling Agreement, any TCC Assignment, the Non-VFC Conveyancing Agreement, the Non-VFC Purchase Agreement, the Substitute VFC Purchase Agreement, the Trust Agreement, the Administration Agreement, the Indenture, the

 

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Reserve Account Agreement and the Underwriting Agreement, and any other agreements contemplated herein or therein.

“Transfer Agreement” means, the Transfer Agreement dated the Closing Date between the Depositor and the Trust pursuant to which the Depositor conveys and assigns the Contracts and other related Transferred Assets to the Trust, in the form attached hereto as Exhibit A.

“Transferred Assets” means with respect to any Contracts (including Substitute Contracts) conveyed or being conveyed to the Trust pursuant to this Agreement, all right and interest of the Depositor in, to and under the following:

(i)   such Contracts and other related Contract Assets (subject to the proviso below);

(ii)   related rights of the Depositor under the Purchase and Sale Agreements and Substitution Assignment Agreement (if any) and the VFC Assignment, including, without limitation, in respect of the obligation of CFUSA to repurchase or substitute for such Contracts under certain circumstances as specified therein; and

(iii)   rights under the Transfer Agreement, each Substitution Transfer Agreement and each Assignment Agreement; and

(iv)   all income from and proceeds of the foregoing;

provided, that Transferred Assets shall not include any title to or ownership interest in the Equipment related to such Contracts (although security interests in such Equipment established pursuant to the related Contract, and proceeds thereof, shall constitute Transferred Assets), and provided further, that the security interest granted by the Depositor pursuant to Section 2.01 hereof in related Equipment owned by it, shall constitute part of Transferred Assets.

“Trust” means the trust governed by the Trust Agreement, the assets and property of which consists of the Trust Assets.

“Trust Accounts” means, collectively, the Collection Account, the Reserve Account and the Note Distribution Account, or any of them.

“Trust Account Property” means the Trust Accounts, all amounts and investments held from time to time in any Trust Account (whether in the form of deposit accounts, physical property, book-entry securities, uncertificated securities or otherwise), and all proceeds of the foregoing.

“Trust Agreement” means the Amended and Restated Trust Agreement, dated as of [__________], between the Depositor and the Owner Trustee, as amended, restated, supplemented or otherwise modified from time to time.

“Trust Assets” has the meaning given to such term in the Trust Agreement.

 

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“Trust Estate” shall have the meaning specified in the Trust Agreement.

“Trustees” means the Owner Trustee and the Indenture Trustee, or any of them individually as the context may require.

“UCC” means the Uniform Commercial Code as enacted from time to time in the State of New York.

“Underwriting Agreement” means the Underwriting Agreement, dated [__________] among [_______________] and [_______________] (as underwriters thereunder and as representatives of the several underwriters), the Depositor and CIT Financial USA, Inc.

“Unfunded Loss Amount” means, with respect to any Payment Date, the excess, if any, of (i) the remainder, if any, of (a) the Aggregate Principal Amount of all of the Notes (prior to giving effect to the payment of principal on the Notes on such Payment Date) minus (b) the lesser of (1) the Contract Pool Principal Balance as of the related Accounting Date for the preceding Payment Date, minus the Contract Pool Principal Balance as of the related Accounting Date for such Payment Date, or (2) (A) the Related Collection Period Pledged Revenue remaining after the payment of amounts owing to the Servicer and the payment of all interest due on the Notes on such Payment Date, plus (B) the amount of any withdrawal from the Reserve Account for the payment of principal in respect of Notes on such Payment Date over (ii) the Contract Pool Principal Balance as of the related Accounting Date.

“Unreimbursed Servicer Advances” means, at any time, the amount of all previous Servicer Advances (or portions thereof) as to which the Servicer has not been reimbursed as of such time pursuant to Section 7.05 and which the Servicer has determined in its sole discretion are Nonrecoverable Advances, and with respect to which the Servicer has given a written certification to such effect to the Trust (which certification may take the form of an entry on a Monthly Report identifying Unreimbursed Servicer Advances).

“United States” means the United States of America.

“Vehicle” means any motor vehicle, the transfer of interests in which is governed by a state certificate of title or registry system.

“Vendor” means, with respect to a Contract, the equipment manufacturer, dealer or distributor, or software licensor or distributor, or other Person that provided financing under such Contract in connection with the acquisition or use by an End-User of such party’s Equipment, Software, Services or other products.

“Vendor Agreements” means the collective reference to Vendor Assignments and Program Agreements.

“Vendor Assignment” means each assignment agreement pursuant to which an individual End-User Contract originated by a Vendor is assigned by such Vendor to the Financing Originator.

 

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“Vendor Guarantee” means the irrevocable obligation of a Vendor to pay to the Financing Originator the aggregate outstanding principal amount of a Contract which has been canceled by the related Obligor pursuant to the terms of such Contract.

“Vendor Loan” means a limited recourse loan agreement payable by a Vendor and secured by the Vendor’s interest in Secondary Contracts and by the Equipment, if any, related thereto.

“VFC Assignment” means the Release and Assignment instrument dated the Closing Date, in the form attached hereto as Exhibit B, executed by the VFC Trust conveying, assigning and releasing the VFC Contract Assets to the Depositor.

“VFCC” means Variable Funding Capital Corporation.

“VFC Contract Assets” means the Contract Assets pertaining to the VFC Contracts.

“VFC Contracts” means Contracts conveyed by the VFC Trust to the Depositor pursuant to the VFC Assignment, as listed in the Schedule of Contracts attached to the VFC Assignment.

“VFC Conveyancing Agreement” means the Amended and Restated Conveyancing Agreement dated as of March 2, 1999, as amended and restated as of June 29, 2000 among the TCC Financing Originators and CFUSA, as the same has been or may be amended, supplemented, restated or otherwise modified from time to time.

“VFC Trust” means the CIT Equipment Trust — VFC Series created and existing pursuant to the Trust Agreement dated as of February 25, 1999, as amended by Amendment No. 1 dated as of June 27, 2000, by and between the Depositor and the Bank of New York (Delaware), as owner trustee, as the same has been or may be amended, supplemented, restated or otherwise modified from time to time.

“VFC Pooling Agreement” means the Amended and Restated Pooling and Servicing Agreement dated as of March 2, 1999, as amended and restated as of June 29, 2000, by and among the VFC Trust, the Depositor and TCC, as the same has been or may be amended, supplemented, restated or otherwise modified from time to time.

“VFC Purchase Agreement” means the Amended and Restated Sale and Contribution Agreement dated as of March 2, 1999, as amended and restated as of June 29, 2000, by and among CFUSA, TCC and the Depositor, as the same has been or may be amended, supplemented, restated or otherwise modified from time to time.

“Vice President” of any Person means any vice president of such Person, whether or not designated by a number or words before or after the title “Vice President,” who is a duly elected officer of such Person.

“Voting Power” means, with respect to any outstanding membership interest of the Depositor, the power (expressed as a percentage) represented by such membership interest of

 

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the aggregate voting power of all outstanding membership interests of the Depositor having ordinary voting power, including the power to vote for election of members of the Board of Directors (and, if any class thereof has power to designate members of the Board of Directors or any special committee thereof, the power so to designate).

Section 1.02    Usage of Terms . With respect to all terms in this Agreement, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all amendments, modifications and supplements thereto or any changes therein entered into in accordance with their respective terms and not prohibited by this Agreement; references to Persons include their permitted successors and assigns; and the term “including” means “including without limitation.”

Section 1.03    Section References . All section references, unless otherwise indicated, shall be to Sections in this Agreement.

Section 1.04    Accounting Terms . All accounting terms used but not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States.

ARTICLE II

FUNDINGS OF TRUST; TRANSFERS OF CONTRACTS

Section 2.01    Creation and Funding of Trust; Transfer of Transferred Assets to Trust . (a) The Trust has been created (i) pursuant to an initial trust agreement as amended and restated by the Trust Agreement, and (ii) by the filing by the Owner Trustee of an appropriately completed Certificate of Trust under the Delaware Statutory Trust Act. The Depositor, as settlor of the Trust, shall fund and convey assets to the Trust pursuant to the terms and provisions hereof. The Trust shall be administered pursuant to the provisions of this Agreement, the Administration Agreement and the Trust Agreement for the benefit of the Noteholders and the Equity Certificateholder. Each of the Owner Trustee and the Administrator (as defined in the Administration Agreement) is hereby specifically recognized by the parties hereto as empowered to conduct business dealings on behalf of the Trust in accordance with the terms hereof and of the Trust Agreement and Administration Agreement.

(b) Subject to the terms and conditions set forth herein, on the Closing Date, the Depositor shall, in consideration of the purchase price of the Contracts and the related Transferred Assets and the retention of the Equity Certificate, transfer, assign, set over and otherwise convey to the Trust by execution of the Transfer Agreement, without recourse (other than as expressly provided herein), (i) all the right, title and interest of the Depositor in and to the Contracts and the related Transferred Assets identified in such Transfer Agreement, and (ii) all income from and proceeds of the foregoing. The “purchase price” for the Contracts and the related Transferred Assets shall be an amount equal to $[__________]. Such purchase price shall be payable in immediately available funds on the Closing Date.

 

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(c) The parties hereto hereby agree and acknowledge that title to or ownership of any related Equipment shall not be transferred to the Trust upon such conveyance and that the Depositor shall retain its ownership interest (to the extent the same has been so conveyed to the Depositor pursuant to the VFC Purchase Agreement, the Non-VFC Purchase Agreement, the Substitute VFC Purchase Agreement and the VFC Assignment) in such Equipment (provided, that the parties agree and intend that any mere security interest, as opposed to title or ownership interest, in the related Equipment which secures the Contract pursuant to the terms thereof, is being assigned and conveyed as part of the Transfer